Exhibit 10.6
FOURTH AMENDMENT TO AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
AND CONSENT
THIS FOURTH AMENDMENT TO AMENDED AND RESTATED REVOLVING CREDIT AND TERM
LOAN AGREEMENT AND CONSENT (this "Fourth Amendment") is made and entered into as
of the ___ day of August, 2000, by and among ▇▇▇▇▇▇▇ WASTE SYSTEMS, INC., a
Delaware corporation (the "Parent"), its Subsidiaries (other than Excluded
Subsidiaries) listed on SCHEDULE 1 to the Credit Agreement defined below
(together with the Parent, collectively the "Borrowers"), FLEET NATIONAL BANK
(f/k/a BankBoston, N.A., "Fleet") and such banks or other financial institutions
which may become a party thereto (the "Banks"), Fleet as Administrative Agent
for the Banks (the "Administrative Agent"), KEYBANK NATIONAL ASSOCIATION as
Documentation Agent, BANK OF AMERICA, N.A. as Syndication Agent and CANADIAN
IMPERIAL BANK OF COMMERCE as the Canadian Agent (the "Canadian Agent", and
together with the Administrative Agent, the "Bank Agents").
WHEREAS, the Borrowers, the Banks and the Bank Agents are parties to an
Amended and Restated Revolving Credit and Term Loan Agreement dated as of
December 14, 1999, (as amended by a First Amendment to Revolving Credit and Term
Loan Agreement dated as of February 2, 2000, a Second Amendment to Revolving
Credit and Term Loan Agreement dated as of February 14, 2000, a Third Amendment
to Revolving Credit and Term Loan Agreement dated as of April 14, 2000, and as
the same may be further amended and in effect from time to time, the "Credit
Agreement"), pursuant to which the Banks have extended credit to the Borrowers
on the terms set forth therein;
WHEREAS, the Borrowers have requested that the Banks and the
Administrative Agent make certain amendments to the Credit Agreement, and the
Banks and the Administrative Agent have are willing to amend the Credit
Agreement on the terms set forth herein;
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have the meanings assigned to such terms in the Credit Agreement.
2. AMENDMENTS TO SECTION 1.1 OF THE CREDIT AGREEMENT. Section 1.1 of
the Credit Agreement is hereby amended by adding the following definitions in
proper alphabetical order:
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"CELLULOSE ASSETS. Those cellulose assets of U.S. Fiber
with an aggregate book value not to exceed $12,500,000 to be
contributed to the Cellulose Joint Venture."
"CELLULOSE JOINT VENTURE. The joint venture between U.S. Fiber
and Greenstone Industries, Inc. with respect to the cellulose fibers
business, including the manufacturing, marketing and selling of
insulation, mulch and other cellulose-based products."
"FOURTH AMENDMENT EFFECTIVE DATE. August __, 2000."
"SERIES A PREFERRED STOCK. The Series A Preferred Stock issued
by the Parent to the entities listed on Schedule A hereto (the "Series
A Holders") pursuant to the Certificate of Designation of Series A
Convertible Preferred Stock, dated as of August 8, 2000, in an
aggregate principal amount not to exceed $55,750,000 plus interest as
provided for in the Certificate of Designation."
"U.S. FIBER. U.S. Fiber, Inc., a North Carolina corporation."
3. AMENDMENT TO SECTION 4A.4.1 OF THE CREDIT AGREEMENT. Section
4A4.1(d) of the Credit Agreement is hereby amended by deleting it in its
entirety and replacing it with the following:
"(d) Fifty-percent (50%) of the Net Equity Proceeds of any
issuance of new capital stock, or any other securities exchangeable
for or convertible into shares of such capital stock, including the
Equity Offering, but excluding (i) stock issued as payment for
acquisitions permitted pursuant to Section 8.4 and (ii) stock issued
in connection with any investment by the Series A Holders in the
Parent (including the issuance of the Series A Preferred Stock) so
long as such investment is on substantially the same terms as the
Series A Preferred Stock, shall be used by the Domestic Borrowers to
pay down the Term Loan."
4. AMENDMENTS TO SECTION 8.1 OF THE CREDIT AGREEMENT. Section 8.1 of
the Credit Agreement is hereby amended by (a) deleting subsection (j) thereof in
its entirety and replacing it with the following:
"(j) Indebtedness of MERC with respect to the ING L/C,
PROVIDED that no later than September 30, 2000, either (i) the ING L/C
shall be replaced by a Letter of Credit under this Agreement or (ii)
the ING L/C shall be cancelled and the Indebtedness of MERC with
respect to the ING L/C shall be paid in full;" and
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(b) adding the following new subsection (m) thereto:
"and (m) Indebtedness with respect to mandatory redemption
obligations as set forth in the Certificate of Designation of
the Series A Preferred Stock, PROVIDED THAT no payments or
Distributions shall be made with respect to such Indebtedness
during the term of this Credit Agreement except as set forth
in Section 8.6 hereof, or as otherwise permitted by the prior
written consent of the Required Banks."
5. AMENDMENTS TO SECTION 8.3 OF THE CREDIT AGREEMENT. Section 8.3 of
the Credit Agreement is hereby amended by (a) deleting the word "and" at the end
of subsection (k) thereof, (b) deleting the period at the end of subsection (l)
thereof and replacing it with "; and", and (c) inserting the following new
subsection (m) at the end thereof:
"(m) Investments by U.S. Fiber in the Cellulose Joint Venture
consisting of (i) the Cellulose Assets and (ii) cash in an amount not
to exceed $5,000,000 in the aggregate during the term of this
Agreement."
6. AMENDMENTS TO SECTION 8.4.2 OF THE CREDIT AGREEMENT. Section 8.4.2
of the Credit Agreement is hereby amended by (a) deleting the words "PROVIDED
FURTHER THAT any sale pursuant to subsections (b) - (d) must occur on or prior
to June 30, 2000" and replacing them with the words "PROVIDED FURTHER THAT any
sale pursuant to subsections (b) - (d) must occur on or prior to June 30 ,2001",
and (b) inserting at the end thereof the following new sentence:
"In addition, U.S. Fiber shall be permitted to spin-off its Cellulose
Assets into the Cellulose Joint Venture, so long as U.S. Fiber (i)
controls at least fifty percent (50%) of the board of directors of the
Cellulose Joint Venture, (ii) owns at least fifty percent (50%) of the
ownership interests of the Cellulose Joint Venture, and (iii) pledges
such ownership interests to the Administrative Agent for the benefit of
the Administrative Agent and the Banks."
7. AMENDMENTS TO SECTION 8.6 OF THE CREDIT AGREEMENT. Section 8.6 of
the Credit Agreement is hereby amended by deleting it in its entirety and
replacing it with the following:
"Section 8.6. RESTRICTED DISTRIBUTIONS AND REDEMPTIONS. None
of the Borrowers will declare or pay any cash Distributions; PROVIDED
that (a) any Subsidiary may declare or pay cash Distributions to the
Parent, and (b) so long as no Default or Event of Default has occurred
and is continuing, or would occur after giving effect thereto, the
Parent may make cash Distributions on its common stock in an aggregate
amount, together with redemptions permitted by the following
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sentence, not to exceed $500,000 during the term of this Agreement. In
addition, the Borrowers shall not redeem, convert, retire or otherwise
acquire shares of any class of capital stock of the Borrowers or
Excluded Subsidiaries in aggregate amount, together with cash
Distributions by the Parent permitted by the previous sentence, in
excess of $500,000 during the term of this Agreement. So long as no
Default or Event of Default has occurred and is continuing, or would
occur after giving effect thereto, at any time after August 9, 2003,
the Parent may make quarterly cash Distributions on its Series A
Preferred Stock in an amount up to five percent (5%) of the face value
of the Series A Preferred Stock per year, but in no event to exceed
$3,226,879 in any fiscal year. Notwithstanding the foregoing, so long
as no Default or Event of Default has occurred and is continuing, or
would occur after giving effect thereto, the Parent may, during the
period commencing on the Fourth Amendment Effective Date through
December 14, 2002, redeem shares of its common stock in an aggregate
amount of up to $27,500,000."
8. AMENDMENTS TO SECTION 9.4 OF THE CREDIT AGREEMENT. Section 9.4 of
the Credit Agreement is hereby amended by inserting after the words "determined
in accordance with GAAP", the words "(including, without duplication, any
preferred stock of the Parent)."
9. AMENDMENT TO SECTION 13.1 OF THE CREDIT AGREEMENT. The following
new subsection (o) is added thereto:
"or (o) A "Change of Control" as defined in the Certificate of
Designation of the Series A Preferred Stock shall occur;".
10. RATIFICATION, ETC. Except as expressly amended hereby, the Credit
Agreement, the other Loan Documents and all documents, instruments and
agreements related thereto are hereby ratified and confirmed in all respects and
shall continue in full force and effect. This Fourth Amendment and the Credit
Agreement shall hereafter be read and construed together as a single document,
and all references in the Credit Agreement or any related agreement or
instrument to the Credit Agreement shall hereafter refer to the Credit Agreement
as amended by this Fourth Amendment.
11. GOVERNING LAW. THIS FOURTH AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
12. COUNTERPARTS. This Fourth Amendment may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
counterparts taken together shall be deemed to constitute one and the same
instrument.
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13. COVENANTS. Within thirty (30) days of the Fourth Amendment
Effective Date (as hereinafter defined), U.S. Fiber shall execute and deliver to
the Agent, a Membership Interest Pledge Agreement (the "Pledge Agreement"),
pledging all of its limited liability company interests in the Cellulose Joint
Venture, and such Pledge Agreement will constitute a Security Document under the
Credit Agreement.
14. EFFECTIVENESS. This Fourth Amendment shall become effective (the
"Fourth Amendment Effective Date") upon the receipt by the Agent of (a) a
counterpart of this Fourth Amendment, executed by the Required Banks and the
Borrowers, (b) an amendment fee in an aggregate amount equal to seven basis
points on the Commitment or outstanding principal portion of the Term Loan, as
applicable, of each Bank which consents to this Fourth Amendment on or prior to
5:00 p.m. (Boston time) on August 4, 2000, (c) payment of all fees and expenses
of the Administrative Agent's legal counsel, and (d) all items outstanding in
connection with the initial closing of the Credit Agreement, all as more fully
described on EXHIBIT A attached hereto.
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IN WITNESS WHEREOF, each of the undersigned have duly executed this
Fourth Amendment as of the date first set forth above.
FLEET NATIONAL BANK
(f/k/a BankBoston, N.A.),
individually and as Administrative Agent
By:
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Name:
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Title:
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KEYBANK NATIONAL ASSOCIATION,
individually and as Documentation Agent
By:
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Name:
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Title:
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BANK OF AMERICA, N.A.,
individually and as Syndication Agent
By:
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Name:
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Title:
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COMERICA BANK
By:
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Name:
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Title:
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CIBC INC.
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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LASALLE BANK NATIONAL
ASSOCIATION
By:
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Name:
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Title:
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CREDIT LYONNAIS NEW YORK BRANCH
By:
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Name:
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Title:
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FIRST VERMONT BANK AND TRUST
COMPANY
By:
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Name:
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Title:
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CANADIAN IMPERIAL BANK OF
COMMERCE, individually and as
Canadian Agent
By:
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Name:
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Title:
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SANKATY HIGH YIELD PARTNERS II, L.P.
By:
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Name:
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Title:
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GREAT POINT CLO 1999-1 LTD.
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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NORTH AMERICAN SENIOR
FLOATING RATE FUND
By:
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Name:
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Title:
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▇▇▇▇▇▇ FLOATING RATE FUND
By:
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Name:
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Title:
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CARLYLE HIGH YIELD PARTNERS II, LTD.
By:
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Name:
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Title:
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CYPRESSTREE INVESTMENT
PARTNERS I, LTD
By:
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Name:
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Title:
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▇▇▇▇▇▇▇▇▇▇▇ SENIOR FLOATING
RATE FUND
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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HARBOURVIEW CDI II, LIMITED
By:
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Name:
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Title:
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INDOSUEZ CAPITAL FUNDING IIA, LIMITED
By: Indosuez Capital Luxembourg, as Collateral
Manager
By:
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Name:
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Title:
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MAGNETITE ASSET INVESTORS, LLC
By:
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Name:
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Title:
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ARES LEVERAGED INVESTMENT FUND II, L.P.
By:
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Name:
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Title:
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ARES III CLO LTD.
By: ARES CLO Management LLC
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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ELT LTD.
By:
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Name:
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Title:
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STRATEGIC MANAGED LOAN PORTFOLIO
By:
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Name:
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Title:
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FIRST DOMINION FUNDING II
By:
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Name:
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Title:
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FIRST DOMINION FUNDING III
By:
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Name:
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Title:
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KZH SHOSHONE LLC
By:
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Name:
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Title:
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PILGRIM AMERICA HIGH INCOME
INVESTMENTS, LTD.
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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PILGRIM CLO 1999-1 LTD.
By: Pilgrim Investments, Inc., as its
investment manager
By:
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Name:
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Title:
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BANKERS TRUST COMPANY
By:
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Name:
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Title:
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ARCHIMEDES FUNDING III, LTD.
By: ING Capital Advisors LLC,
as Collateral Manager
By:
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Name:
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Title:
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CYPRESSTREE INVESTMENT PARTNERS II, LTD.
By:
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Name:
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Title:
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KZH-ING-1 LLC
By:
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Name:
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Title:
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KZH-ING-3 LLC
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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SEQUILS-ING I (HBDGM), LTD.
By: ING Capital Advisors LLC,
as Collateral Manager and Authorized Signatory
By:
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Name:
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Title:
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▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
PRIME INCOME TRUST
By:
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Name:
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Title:
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THE TRAVELERS INSURANCE COMPANY
By:
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Name:
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Title:
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TRAVELERS CORPORATE LOAN FUND INC.
By: Travelers Asset Management
International Company LLC
By:
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Name:
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Title:
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▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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ELC (CAYMAN) LTD. 1999-III
By:
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Name:
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Title:
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FIRST ALLAMERICA FINANCIAL LIFE
INSURANCE CO.
By:
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Name:
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Title:
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AVALON CAPITAL LTD.
By: INVESCO Senior Secured Management,
Inc., as Portfolio Advisor
By:
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Name:
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Title:
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AVALON CAPITAL LTD. 2
By: INVESCO Senior Secured Management,
Inc., as Portfolio Advisor
By:
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Name:
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Title:
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OLYMPIC FUNDING TRUST, SERIES 1999-1
By:
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Name:
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Title:
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KZH CYPRESSTREE-1 LLC
By:
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Name:
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Title:
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NORSE CBO, LTD.
By:
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Name:
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Title:
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[SIGNATURES CONTINUED ON FOLLOWING PAGE]
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COLUMBUS LOAN FUNDING LTD.
By: Travelers Asset Management International
Company LLC
By:
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Name:
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Title:
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MUIRFIELD TRADING LLC
By:
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Name:
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Title:
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▇▇▇▇▇▇▇▇▇/RMF TRANSATLANTIC CDO, LTD.
By:
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Name:
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Title:
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▇▇▇▇▇▇▇▇▇ CLO I, LIMITED
By:
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Name:
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Title:
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▇▇▇▇▇▇▇▇▇ CLO II, LIMITED
By:
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Name:
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Title:
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DOMESTIC BORROWERS:
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ALL CYCLE WASTE, INC.
BRISTOL WASTE MANAGEMENT, INC.
CASELLA T.I.R.E.S., INC.
CASELLA TRANSPORTATION, INC.
▇▇▇▇▇▇▇ WASTE MANAGEMENT, INC.
▇▇▇▇▇▇▇ WASTE MANAGEMENT OF N.Y., INC.
▇▇▇▇▇▇▇ WASTE MANAGEMENT OF PENNSYLVANIA, INC.
▇▇▇▇▇▇▇ WASTE SYSTEMS, INC.
GRASSLANDS INC.
▇▇▇▇▇ C & D DISPOSAL, INC.
▇▇▇▇▇ HOLLOW REGENERATION CORP.
NATURAL ENVIRONMENTAL, INC.
NEWBURY WASTE MANAGEMENT, INC.
NEW ENGLAND WASTE SERVICES, INC.
NEW ENGLAND WASTE SERVICES OF MASSACHUSETTS, INC.
NEW ENGLAND WASTE SERVICES OF N.Y., INC.
NEW ENGLAND WASTE SERVICES OF VERMONT, INC.
NORTH COUNTRY ENVIRONMENTAL SERVICES, INC.
NORTHERN SANITATION, INC.
PINE TREE WASTE, INC.
RESOURCE RECOVERY OF CAPE COD, INC.
RESOURCE TRANSFER SERVICES, INC.
RESOURCE WASTE SYSTEMS, INC.
▇▇▇▇▇▇ ENVIRONMENTAL RECOVERY FACILITIES, INC.
▇▇▇▇▇▇ ENVIRONMENTAL SERVICES
▇▇▇▇▇▇▇ LANDFILL, INC.
SUNDERLAND WASTE MANAGEMENT, INC.
WASTE-STREAM INC.
WESTFIELD DISPOSAL SERVICE, INC.
▇▇▇▇▇▇▇ BROTHERS, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
[SIGNATURES CONTINUED ON NEXT PAGE]
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ADVANCED ENTERPRISES RECYCLING INC.
THE AFA GROUP, INC.
AFA PALLET, INC.
AGRO PRODUCTS, INC.
ALLIED EQUIPT. & SALES CORP., INC.
AMERICAN SUPPLIES SALES GROUP, INC.
ARTIC INC.
ATLANTIC TRANSPORTATION TECHNOLOGIES INC.
DATA DESTRUCTION SERVICES, INC.
FAIRFIELD COUNTY RECYCLING, INC.
FCR CAMDEN, INC.
FCR FLORIDA, INC.
FCR GEORGIA, INC.
FCR GREENSBORO, INC.
FCR GREENVILLE, INC.
FCR ▇▇▇▇▇▇, INC.
FCR PLASTICS, INC.
FCR REDEMPTION, INC.
FCR TENNESSEE, INC.
FCR VIRGINIA, INC.
FCR, INC.
KTI BIO FUELS, INC.
KTI ENERGY OF MARTINSVILLE, INC.
KTI ENERGY OF VIRGINIA, INC.
KTI ENVIRONMENTAL GROUP, INC.
KTI NEW JERSEY FIBERS, INC.
KTI OPERATIONS, INC.
KTI RECYCLING OF ILLINOIS, INC.
KTI RECYCLING OF NEW ENGLAND, INC.
KTI RECYCLING OF NEW JERSEY, INC.
KTI RECYCLING, INC.
KTI SPECIALTY WASTE SERVICES, INC.
KTI TRANSPORTATION SERVICES, INC.
KTI, INC.
MANNER RESINS, INC.
MECKLENBURG COUNTY RECYCLING, INC.
POWER SHIP TRANSPORT, INC.
TOTAL WASTE MANAGEMENT CORP.
U.S. FIBER, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
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PENOBSCOT ENERGY RECOVERY COMPANY,
LIMITED PARTNERSHIP
By: PERC Management Company Limited
Partnership, general partner
By: PERC, Inc., general partner
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
PERC MANAGEMENT COMPANY, LIMITED
PARTNERSHIP
By: PERC, Inc., general partner
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
CANADIAN BORROWERS:
KTI RECYCLING OF CANADA, INC.
1316991 ONTARIO, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
SCHEDULE A
Berkshire Fund V Investment Corp.
Berkshire Investors LLC
BancBoston Capital Inc.
RGIP, LLC
Squam Lake Investors IV, L.P.
